THE PEOPLE, Plaintiff and Respondent, v. RAYMOND QUIJADA, Defendant and Appellant.

B173378 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN 2005 Cal. App. Unpub. LEXIS 1235 February 14, 2005, Filed NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977. PRIOR HISTORY: APPEAL from an order of the Superior Court of Los Angeles County, No. LA 024836. Kathryne Stoltz, Judge. DISPOSITION: Affirmed. CORE TERMS: murder, error coram nobis, mentally incompetent, pleaded guilty, disorder, assault, rape, declaration, plea hearing, forcible rape, intent to commit rape, unable to understand, alcohol-induced, seizure, vacate, alcohol's, sentencing enhancements, felony convictions, attempted rape, defense counsel, incompetent, competence, rendition, custody, felony, prison, brain damage, pleading guilty, constitutional rights, incompetence COUNSEL: Sean Ellis for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent. JUDGES: ZELON, J.; PERLUSS, P. J., JOHNSON, J. concurred. OPINION BY: ZELON OPINION Raymond Quijada appeals from the order denying his petition for a writ of error coram nobis to vacate the judgment following his guilty plea to forcible rape and

admission of various sentencing enhancements. He contends the trial court erroneously failed to grant his petition, "which was supported by extensive evidence" of his incompetence at the time of his plea. We affirm. FACTUAL [*2] AND PROCEDURAL BACKGROUND In an information filed on October 9, 1996, the District Attorney charged Quijada with having committed forcible rape on July 28, 1996 and inflicting great bodily injury on the victim. (Pen. Code, 261, subd. (a)(2); 12022.8.) It was also alleged he suffered a prior felony sex offense conviction [forcible rape] (Pen. Code, 667.6; 667.61, subds. (a) and (d)), three prior strike felony convictions [assault with intent to commit rape, attempted rape, rape] (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions [assault with intent to commit rape, rape] (Pen. Code, 667, subd. (a)(1)), and had served a separate prison term for a felony [assault with a deadly weapon] (Pen. Code, 667.5). On November 4, 1996, Quijada pleaded guilty to forcible rape and admitted that he had suffered prior convictions for assault with intent to commit rape, attempted rape and rape as sentencing enhancements (Pen. Code, 667.6, subd. (a); 667.61, subds. (a) and (d); 667, subd. (a)(1); [*3] 667, subds. (b)-(i); 1170.12 (a)-(d)). The trial court sentenced him to a total term of 35 years to life in state prison. On December 4, 2003, Quijada filed a petition for writ of error coram nobis to vacate the November 4, 1996 judgment on the ground that at the time of his plea, he was mentally incompetent of which he was unaware until 2002 when he was evaluated in connection with a then-pending murder charge in San Francisco. The purpose of the evaluation was to assess whether Quijada was sane on May 31, 1996, when the alleged murder occurred. In support of his petition, Quijada submitted his own declaration as well as a declaration from his current counsel Sean Ellis, and reports from four physicians who examined him in 2002. Attorney Sean Ellis stated in his declaration of August 30, 2003 that he presently represents Quijada in the San Francisco murder case and upon receiving physicians' reports, he believed his client was mentally incompetent and took immediate action to have the prior judgment vacated with the petition. Quijada stated in his declaration that because he suffers from "depression, mental retardation, brain damage and psychiatric difficulties," as determined [*4] by the examining physicians, he "did not fully understand the nature of the charges" against him "or the consequences of pleading guilty," including the constitutional rights he was waiving on November 4, 1996. The physicians' reports describe Quijada's history of drug and alcohol abuse and his periodic "alcoholic blackouts." Alcoholism apparently runs in his family and his mother suffered from some form of mental illness. The reports also indicate that

Quijada has a substantial criminal history, which he began as a juvenile. In his June 10, 2002 report, Dr. Samuel Benson determined that Quijada "has clinical soft signs supported by neuro-imaging hard signs that are consistent with diagnoses including bipolar disorder, retardation, and organic brain damage" as well as "alcohol induced" seizures which render him unconscious "although he appears to be functioning normally and consciously." As a result, Dr. Benson opined that Quijada "was unable to appreciate the nature and quality of the act alleged in the charges at the time of its commission." Dr. Daniel Amen conducted brain SPECT (single photon emission computed tomography) studies of Quijada in June 2002 after Dr. Benson referred [*5] Quijada to him. In his report, Dr. Amen concluded that the pattern of these studies' findings is often seen in patients presenting with: Temporal lobe dysfunction; prefrontral cortex dysfunction; an ADD-like process; anxiety issues, depressive issues and cyclic mood changes; brain trauma; and prior toxic exposure. In his July 1, 2002 report, Dr. David Kessler opined that Quijada's "alleged behavior would be consistent with someone who is capable of understanding the nature of his acts and of their potential wrongfulness." According to Dr. Kessler, Quijada's claim he could not remember committing the alleged murder because of an alcohol-induced blackout "if genuine, could represent an instance of goal-directed behavior carried out while one is intoxicated, but which one cannot later recall because of alcohol's interference with the laying down of a memory record." After examining him twice, Dr. Roland Levy concluded in his July 15, 2002 report that Quijada "appears to have a bipolar affective disorder and presently is showing some evidence of depression for which he is receiving medication therapy." In Dr. Levy's opinion, "at the time of the alleged [murder], [Quijada] had the [*6] ability to understand the nature and quality of his actions, as well as the wrongfulness of his behavior" and was therefore "not suffering from any disorder which would render him not responsible for his actions." The trial court summarily denied the petition for writ of error coram nobis on December 4, 2003. In a three-page order, the court noted that two of the physicians "opine that [Quijada] was sane at the time of the murder and two are of the opinion that he was not." After summarizing the physicians' findings, the court commented that "nowhere in any of the doctors' reports does it state that [Quijada] is incompetent to stand trial, is unable to understand the proceedings or unable to assist his attorney. The assertion that [Quijada] is (or was) incompetent is not supported by the evidence presented." Additionally, the trial court found that Quijada had been in continuous custody for three months before he entered his plea and thus it was "highly unlikely" that he was suffering from an alcohol-induced seizure. After reviewing the plea transcript, the court also determined: Quijada was advised of all of his constitutional rights, that he informed the sentencing judge [*7] that he understood those rights,

and that he freely and voluntarily waived them before pleading guilty. Quijada appropriately answered all questions posed to him, never showing confusion or uncertainty. When specifically asked whether he had any further questions Quijada answered, "No" before he waived his rights and pleaded guilty. DISCUSSION Quijada contends the trial court abused its discretion by summarily denying the petition because presenting evidence of his mental incompetence at the time of his plea would have prevented rendition of the judgment. Not so. A petition for a writ of error coram nobis may be brought to vacate a judgment when new evidence is discovered that reveals factual errors in the rendition of judgment. (People v. Gallardo (2000) 77 Cal.App.4th 971, 987; People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) To be successful, the petitioner must show newly discovered factual evidence, that undermines the judgment but does not go to the merits of issues tried, that was previously unknown to the petitioner and that could not with the exercise of due diligence have been discovered substantially earlier than the time [*8] of the petition. (People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal. Rptr. 1; People v. Ibanez, supra, 76 Cal.App.4th at pp. 544-545.) It is the petitioner's burden to establish by clear and convincing evidence that the petitioner was deprived of a substantial right by some extrinsic cause. (People v. Tucker (1957) 154 Cal. App. 2d 359, 362.) The denial of a petition for writ of error coram nobis is generally appealable and is reviewed for abuse of discretion. (People v. Dubon (2001) 90 Cal.App.4th 944, 951.) In Drope v. Missouri (1975) 420 U.S. 162 [95 S. Ct. 896, 43 L. Ed. 2d 103], the United States Supreme Court held that the state may not try a defendant whose "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. . . ." (Id. at p. 171.) The standard for competence to plead guilty is identical to that for standing trial. (Godinez v. Moran (1993) 509 U.S. 389 [113 S. Ct. 2680, 125 L. Ed. 2d 321.]) The standard in California [*9] is contained in Penal Code section 1367, subdivision (a), which provides: "A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." There was no abuse of discretion in this case. Quijada's petition presented insufficient prima facie evidence that he was mentally incompetent when he pleaded guilty on November 4, 1996. (Compare with People v. Welch (1964) 61 Cal.2d 786, 794-795, 40 Cal. Rptr. 238.) The three-page order reflects the trial court's thorough and thoughtful assessment of the supporting documents and the plea hearing transcript

before ruling on the petition. We agree with the trial court that none of the physicians' reports addressed the issue of Quijada's mental competence on November 4, 1996 when he pleaded guilty, as opposed to his sanity on May 31, 1996 when he allegedly committed murder, 1 and that as a result of three [*10] months in custody, Quijada was not experiencing an alcohol-induced seizure during his plea hearing. Additionally, as the trial court remarked, the nature of Quijada's various oral responses at the plea hearing failed to show he was unable to understand the proceedings or to assist defense counsel. We note that his then defense counsel "joined in the waivers and concured in the plea." - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 Compare Penal Code sections 1367 and 1027. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - DISPOSITION The order under review is affirmed. ZELON, J. We concur: PERLUSS, P. J. JOHNSON, J.
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